Burnt Orange Report

Ten out of Twelve Jurors Agree: Vioxx'll kill ya

By Jim Dallas

Yesterday, the jury in Angleton handed down a $253.4 million award for the plaintiff.

.
.
.

Now that you've had a chance to get all excited about $253.4 million, let me remind you that most of these big awards get cut down, or even reversed, by the trial judge or on appeal. The award almost certainly will be cut down on appeal, because the punitive damages greatly exceed compensatory damages.

And of course Merck has vowed to appeal. Canadian television gives some insight into what those grounds might be:

Pharmaceutical giant Merck and Co. has announced it will be appealing the $253.4-million US damage award given to the widow of a man who took the painkiller Vioxx.

"We believe that we have strong points to raise on appeal and are hopeful that the appeals process will correct the verdict," Kenneth C. Frazier, senior vice president and general counsel of Merck, said in a statement.

"Our appeal is about fundamental rights to a fair trial."

Merck lawyer Jonathan Skidmore said the appeal would focus on what he called "unreliable scientific evidence."

"It'll be based on the fact that we believe unqualified expert testimony was allowed in the case; there were expert opinions that weren't grounded in science, the type that are required in the state of Texas," he said.

"We don't believe they (plaintiffs) met their burden of proof."

At first glance, this suggests to me that the ruling may be affirmed on appeal; if these are the only grounds, then Merck will be in a very bad position because the factual conclusions of the jury are reviewed on the appellate level under a very deferential standard - they'd have to be "clearly erroneous" in order for the court of appeals to overturn on those grounds. Moreover, this suggests that Merck is going to try to argue that scientific testimony shouldn't have been admitted; that will also be a hard ground (although not as hard) to argue, I think, because my impression is that appellate judges do not like overturning trial judges on admissions of evidence. Moreover, there is quite a bit of contradictory authority with regard to the rules that govern this (e.g. TRE 702, etc), and I would guess that the court of appeals would probably read the case law in a way that would allow them to defer.

Moreover, Merck may try to argue that the company should have been granted a summary judgment; that might actually be a pretty strong ground for appeal (because the court of appeals might take a fresh look at some of the issues). But the news reports, at least, aren't indicating that this is what Merck is thinking. We'll just have to see what happens when they file their appeal, probably some time in the next few weeks. It could be years before we know what exactly Carol Ernst is entitled to, if anything.

Of course, lurking behind all this are some institutional issues. Will the FDA get the blame it deserves? Rather than watch one of the largest pharmaceutical companies (and a major source of campaign funds for the Republican Party) fail under the burden of over 4,000 lawsuits, will Congress try to legislate the problem away, the same way they did with asbestos? Will the "tort reformers" sharpern their knives and go on the attack (again)?

Stay tuned, BOR readers.

UPDATE: In other legal news, Kuff reports that Star Bock has defeated Starbucks in Sam Kent's courtroom. w00t!

UPDATE 2: And Greg has his opinion here.